Ex Parte Penn

539 So. 2d 319, 1987 WL 328

Opinions

We granted certiorari in this case to determine if the trial court erred in putting the defendant, Edward Penn, to trial where the district attorney used his peremptory strikes to remove only blacks from the petit jury venire. The Court of Criminal Appeals affirmed the conviction, 539 So.2d 316, relying on the test enunciated in Swain v. Alabama, 380 U.S. 202,85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Thereafter, in Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court announced a new test to be used in determining whether a prima facie case of racial discrimination was established. In Ex parte Jackson, 516 So.2d 768 (Ala. 1986), this Court held as a matter of Alabama constitutional law that this "Batson test" would be applied retroactively to cases pending on direct appeal, like the case sub judice. Therefore, on the authority of Ex parte Jackson, this case is remanded to the Court of Criminal Appeals with instructions to direct the trial court to determine whether Penn is entitled to a new trial.

REMANDED WITH INSTRUCTIONS.

TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur.

MADDOX, J., concurs specially.